Occupier’s liability and the doctrine of judicial precedent

Q1 (1) Children’s Adventure Park’s act has given rise to both civil action and criminal prosecution. By referring to a relevant case, Alton Towers smiler ride crash case. Alton Towers had breached Health and Safety at Work Act 1974 following a rollercoaster crash. Four people had been seriously injured in the crash and this incident has led both civil and criminal consequences to Alton Towers. (http://www.dailymail.co.uk/news/article-3108873/Alton-Towers-staff-did-not-crushed-rollercoaster-car-10-minutes.html, 2015) The legal position which covered by Occupier’s Liability Act 1957 states that occupier, Alton Towers or Children’s Adventure Park had a duty of care to all lawful visitors. 
 
Principles of negligence applied in this case as Adventure’s Children Park has failed to take reasonable care and caused damages. The burden of proof is based upon the claimant to prove their case on a balance of probabilities. In this case, Mr. and Mrs. Patel have to prove that the park owed them a duty of taking reasonable care. The park has breached of that duty as there was no maintenance or inspection for the security bar and failure to carry out legal risk assessment. As a result of that breach, the claimants have to prove that a reasonably foreseeable type of damage was caused by the breach. The claimants might sue the park in the civil courts for the tort of negligence to claim for remedies to compensate themselves for economic loss and physical damages caused by tortfeasor, Children’s Adventure Park.
This case will be commenced either in the county court or in the High court, Queen’s Bench Division as It depends on the complexity of the claim and the amount of money incurred.
However, the park could be charged with a criminal offence of causing the claimants to lose their ability to walk by breaching Health and Safety at Work Act 1974. The burden of proof for criminal cases is placed upon the prosecution and it must prove the defendant’s guilt beyond reasonable doubt, failure to observe health and safety provisions which is a strict liability offence. It required only proof of guilty act to secure a conviction. The park may found guilty under Class 4 offences, such as grievous bodily harm. (BUSINESS LAW 8TH EDITION,
All criminal cases start in a Magistrates Court and the magistrates will decide which cases to be conducted in the Crown Court by a circuit judge or High court judge. There are 12-person jury in the Crown Court to consider the evidence and decide whether the defendant is guilty or not. The defendant is either acquitted or convicted. If convicted, the defendant will be sentenced.

http://www.e-lawresources.co.uk/Strict-liability.php

Q1. (2) Doctrine of judicial Precedent is concerned with the importance of common law in our system. It refers to an important source of law where courts are bound by the previous decisions made while judges are dealing with similar cases where law and facts are identical. The basis of “Doctrine of judicial precedent” is formed by the principle of stare decisis, ‘to stand by past decisions made’. To operate the doctrine of judicial precedent, courts are arranged in a hierarchical structure and the decisions of higher-ranking courts such as Supreme Court, House of lords are binding upon lower-ranking courts. Judicial precedent involves two legal principles which are ‘ratio decidendi’ and ‘obiter dicta’. Ratio decidendi is the binding part of a judicial decision which refers to the ‘reason for the decision’. However, ‘obiter dicta’ refers to ‘literally, other things said’ and creates no binding precedent but may cited as persuasive authority
The first advantage of the system of precedent is that it provides certainty in the law and this allows legal professions to forecast the possible outcomes for most of the cases as similar cases will be dealt in similar way. It’s important to ensure that the uniformity in this system has led to consistency and fairness in order to be generally accepted by the public. Furthermore, this certainty enables many cases to be settled without the need to go to court.
Existence of the precedent system allows high-quality decisions to be applied in all courts. Judges in appellate courts have the time and experience to deal with various cases often on extremely complex matters and these decisions can be applied by much busier and less experienced lower court judges to refer with. Furthermore, it provides guidance for judges in order to prevent mistakes and avoid the sense of injustice.
The following advantage is that the mechanism of distinguishing a case. A judge can refuse to follow a binding precedent if the judge considers that the material facts of the case are sufficiently different from the facts of the case by which he appears to be bound. It has given rise to the system a degree of flexibility to avoid precedents and this enables the system to adapt to new situations.
However, the flexibility may cause this system becomes uncertain as cases can be easily be distinguished on their facts to avoid precedents.
The next disadvantage of this system is that slow development of law. Earlier precedent cannot be changed or modified until an appropriate case was appealed to a higher appellate court.
Disadvantage of complexity exists in this system as difficulties arise in deciding the ratio dicidendi for a case if there are too many cases and reasons.

Q2. Tort of negligence is committed when personal conduct falls below the standards of behaviour established by law for the protection of others against unreasonable risk of harm. Aim of tort law is to compensate claimants for damage caused by tortfeasor. Liability in tort is almost always based on fault and not undertaken voluntarily but is imposed by the courts. In order to succeed in a tort claim, three elements must be proved which are the defendant owed the claimant a duty of care, the defendant breached the duty and a reasonable foreseeable damage was caused by the breach.
Donoghue v Stevenson [1932], the snail in the ginger beer bottle case is the foundation case which established the modern law of negligence. Mrs. Donoghue and her friend visited a café in Glasgow. Her friend ordered a ‘ginger beer float’ for Donoghue which consisted of ice cream in a glass along with a bottle of ginger beer to pour over the top of it. The ginger beer arrived in a dark opaque bottle. Donoghue poured some of the ginger beer over her ice cream and ate some of it. Her friend poured the remainder of the ginger beer into her own glass and a decomposed snail emerged from the bottle. Donoghue became ill. A physician diagnosed her with gastroenteritis. Donoghue sued the manufacturer of the ginger beer, Mr. Stevenson in tort as she could not sue Stevenson for breach of contract because there was no contractual arrangement with Stevenson as her friend had purchased the drink for her.
Previously, a claimant could only take civil action against a defendant if it had proven that the claimant suffered from the damages caused by defendant’s negligence and there was a contractual relationship between them. This case had expanded the tort of negligence to cover new scenarios to which it had never previously been applied. According to Lord Atkin’s ratio decidendi, manufacturers owe a duty of care to see that the ultimate users of their products are not injured by these products therefore it claimed that Stevenson owed a duty of care to Donoghue and ultimate users to ensure that their products are safe for consumption.
This case had given rise to ‘neighbour principle’. The rule that you must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
The neighbour principle was widely adopted as a definitive test for duty in the courts. The case, Anns v Merton London Borough Council [1978] had established ‘two stage’ test based on the neighbour principle laid out in Donoghue and Stevenson case. ‘Two stage’ test takes into account whether there is sufficient relationship of proximity between both parties and policy considerations for not imposing a duty of care or to negate liability.
Caparo Industries PLC v Dickman [1990] had modified Lord Wilberforce’s two stage test and developed ‘three stage test’. First, the claimant must prove that the harm was reasonably foreseeable and second step is ‘proximity of relationship between the claimant and the defendant’. The final step is that it must be fair, just and reasonable to impose a duty of care.

Q3 (1) One of the elements of a valid contract is an agreement which also refers to an offer and acceptance. Offer and acceptance can be defined as the offeror makes an offer by introducing a set of terms with the intention that the terms will form a legally binding agreement if they are accepted by the offeree. Once the offeree has accepted the offer, both parties are legally bound by the terms proposed and a contract comes into existence. Furthermore, a legally enforceable agreement has to be supported by consideration which refers to price for a promise. It can be money or money’s worth. An agreement cannot amount to a contract unless both parties intended to create legal relations. In this case, Annabel offered to sell Bob her red Honda jazz motor vehicle for £3000 and indicated that Bob must write back to her if he wants to buy the car.
In Adams v Lindsell [1818], the defendant offered to sell wool to the claimant and requiring a reply ‘in course of post’. The defendant misdirected the letter and caused a delay for the claimant to receive the letter. The claimant posted an acceptance on the same day, 5 September and the letter of acceptance wasn’t received by the defendant until 9 September. The defendant sold the wool to a third party due to the delay. The defendant was found guilty for breach of contract. The postal rule applies when an offer is accepted by posting a letter. This rule holds that the acceptance of an offer by post is effective as soon as the letter has been properly addressed and posted. Bob has posted a letter of acceptance to Annabel and it was properly addressed and properly posted.
However, argument of whether postal rule applied in this case arises. In Holwell Securities v Hughes [1974], the defendant had offered the claimant to purchase his house for £45,000 and

Q3. (2) As regards social and domestic agreements, there is a presumption that the parties did not intend to create legal relations but the presumption can be rebutted. For example, a written agreement, both parties have separated, existence of third party in the agreement. (http://www.e-lawresources.co.uk/Intention-to-create-legal-relations.php) The Court of Appeal established the principle that agreements between husband and wife are unlikely to be contracts unless there is very clear evidence that this was in fact the intention. However, the principle set out in the Balfour case is very much weakened if the husband and wife are separated or contemplating separation. For example, Merritt v Merritt [1970].

In Merritt the court distinguished the case from Balfour because although the parties were husband and wife, the agreement was made parties were husband and wife, the agreement was made after they had separated. Furthermore, it was in writing, so it was a legally enforceable contract

Q3. (3) A contract of sale of goods required the buyer to pay a money consideration, the price and the subject matter of the contract must be goods. Seller’s obligation under the contract must be transferring or agree to transfer the property in goods to the buyer. There is no need to mention terms in the non-consumer contracts as the Sale of Goods Act 1979 will automatically be implied. It offers protection to consumers which includes goods sold are of satisfactory quality, fitness for the buyer’s purpose. In this case, Furnitureland had breached of Sale of Goods Act 1979 under section 13 (1), it implies a condition that the sale of goods will correspond with the description. Application of this principle can be found in Beale v Taylor [1967] case. The defendant advertised a car as a ‘Herald Convertible, white, 1961’. The claimant inspected and examined the car before agreeing to purchase it. However, after the claimant took the car to a garage for repair, he discovered that the rear of the car was a 1961 rear but the front half was part of an earlier model. Two cars had been damaged and someone had welded both parts into a single car. It was held that the defendant was liable for breach of Section 13 as the car is sold by the description in the advertisement despite that he had inspected the car.
Same principle applies in this case. John ordered a sofa from Furnitureland which was described in the brochure that sofa cushions are filled with feathers and have a cotton cover. However, when John received his sofa, he realized that the cushions are made of nylon and not filled with feathers.
Therefore, John may sue Furnitureland for breach of Section 13 as the sofa is sold by description in the brochure. Therefore, John is entitled to reject the goods and claim for remedies, repair or replacement refund.

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